The New York Times | Sep.1, 2017
Police officers outside the Supreme Court building in Nairobi, Kenya, on Friday. Credit Ben Curtis/Associated Press
By KIMIKO de FREYTAS-TAMURA SEPT. 1, 2017
NAIROBI, Kenya — The Kenyan Supreme Court nullified on Friday the re-election last month of President Uhuru Kenyatta, ordering a new vote to be held within 60 days, in a stunning decision that said the election had been tainted by irregularities.
The Aug. 8 election, which was conducted peacefully, was thought to have been Kenya’s freest yet and was largely praised by international observers, but the authorities still bolstered security in advance of the court’s decision. Tensions were running high after the contentious campaign, and the country has a history of postelection violence, with at least 24 people being killed in the days after the recent vote, most of them by security forces.
David Maraga, the court’s chief justice, declared the result “null and void” after siding with opposition figures, who had complained about election irregularities and raised questions about the fairness and transparency of the vote.
A top election official in charge of voting technology was murdered about a week before the election, and although the casting of ballots went smoothly, their collation and electronic transmission were flawed, leading the opposition to assert that as many as seven million votes had been stolen.
Mr. Kenyatta, 55, was re-elected with 54 percent of the vote, easily surpassing the 50 percent threshold needed to to avoid a runoff. His main challenger, Raila Odinga, 72, who had petitioned the Supreme Court to nullify the election, received about 44 percent, a difference of about 1.4 million votes. A parallel tally by domestic observers endorsed the official result.
Many Kenyans and observers were anxious about how the country would react to the ruling. In addition to the violence last month, previous elections in 2007 and 2013, which the opposition also asserted were rigged, led to clashes that left hundreds dead.
“My concern is that no matter what the court says, the losers will react violently,” John Campbell, a senior fellow for Africa policy at the Council on Foreign Relations and a former ambassador to Nigeria, said before the ruling.
Mr. Campbell expressed concern that “neither Kenyatta nor Odinga prepared their followers for the possibility of losing.”
Both sides went to court holding strident positions: The opposition said it had evidence of “monstrous fraud and forgery” and the incumbent said it was “bullish and ready” to strike down its rival’s claims.
The seven judges sitting on the Supreme Court, which has bolstered its independence in recent years but is still viewed by many Kenyans as being under government influence, were facing pressure to set out arguments that would persuade people on both sides, said Dickson Omondi, a country director for the National Democratic Institute, a nonpartisan organization that supports democratic institutions and practices worldwide.
The election controversy hinges on two paper forms that legally validate the ballots — one from each of the country’s 40,883 polling stations and the other from 290 constituencies. Representatives from rival parties were required to sign off on the forms before the papers were scanned and electronically transmitted to a national tallying center in Nairobi, where they were to be put online immediately so they could be crosschecked by everybody.
Ben Curtis/Associated Press
But the electronic system, which had been overseen by Christopher Chege Msando, the election official who was murdered, broke down. As a result, only the results were sent to the national tallying center, often via text message.
International election observers were quick to praise the electoral body after the vote, mainly based on the apparent lack of evidence that votes had been tampered with at polling stations and that the paper forms, not the electronic transmission of results, reflected the integrity of the election.
But when Mr. Kenyatta was initially declared the winner, just hours after voting ended, almost none of the forms from the polling stations were online, even though it had a week to receive scanned images of the results. A couple of days later, the electoral commission announced that about 10,000 forms were unaccounted for, sowing even more doubt and suspicion over its credibility.
“The scenario was similar to that of the Bermuda Triangle where no one knows how ships disappear,” said Pheroze Nowrojee, a lawyer representing Mr. Odinga and the National Super Alliance, the opposition umbrella group.
The electoral commission said it had presented the forms, cited in a report by the registrar of the Supreme Court. However, that report found that a third of the forms lacked security features like watermarks or serial numbers, which election observers saw as evidence that the forms were probably false.
Mr. Kenyatta’s lawyer, Fred Ngatia, denied any wrongdoing, saying that what “had been presented as defective were correct and did not have any error.”
The opposition was also not given enough time to access, as ordered by the Supreme Court, the electoral commission’s servers, logs, and the electronic kits used to identify voters and transmit the results.
Walter Mebane, a professor of statistics and political science at the University of Michigan who studies elections worldwide, volunteered to run the voting results through a computer model he developed to detect electoral fraud. Based on statistics only, and without knowledge of the intricacies of Kenyan politics, he and his team found patterns that showed widespread manipulation.
“It was unlike any data set I had ever seen,” he said. “Every single indicator came up signaling anomalies. It’s a huge red flag that something weird is going on.”
His model found about 400,000 fraudulent votes, a significant number, he said, but probably not enough to swing the results. (More than a million votes would be needed to sway the outcome, he said.)
In the run-up to the Supreme Court hearing, Mr. Odinga, in an interview, said it would not matter whether the court ruled against him because the case was more of an opportunity to expose evidence of widespread rigging and to set a precedent for fair and free elections in the future.
Ultimately, the court’s ruling is a secondary issue, said Mr. Campbell, the former ambassador. “That’s almost beside the point,” he said. “It’s how people actually respond to it.”